MUNIB AHMAD KHAN, J.--:On 18-6-2007 when the matter was taken up, Mr. Manzoor Arain, the learned counsel for the Crescent Leasing Company, pointed out his objections and stated that allegation of snatching the car levelled in the F.I.R. Is false as it was the applicant himself, who after his failure to pay the instalment of the Car to the leasing company, surrendered the car to the company and now to pressurize the company it has lodged false F.I.R. He pointed out Annexures R- 8 and R-9 both dated 23-6-2007 to show that applicant handed over the car to the company himself. Such arguments of the counsel for the leasing company were strongly refuted by the applicant and his counsel by stating that these were the document which were got signed by the leasing company at the time of approval of lease and certain blanks in these documents have been filled at a later stage as per choice of the company. Keeping in view such factual controversy directions were issued for appearance of Managing Director of the Leasing Company on the next date. On 19-6-2007 Syed Shah Nawaz Rizvi, Director/Chief Executive of Crescent Leasing Company appeared and stated that the car has been re-possessed by his company in terms of section 16(3)
(a) of the Financial Institutions (Recovery of Finances) Ordinance 2001 as the applicant failed to return the finance in agreed terms under which it was granted. He further stated that for the purposes of re-possession, his company has acquired the services of ICH, Company, who, acting as agent of the Crescent Leasing Company, re-possessed the car in dispute on its directions.
Statement of the above official of leasing company is contrary to the statement of its learned counsel given on 18-6-2006 on which date he stated that the applicant himself surrendered the car. It further appears that Annexures R-8 and R-9 filed with the objections of the leasing company are not valid documents as they are contrary to the factual position stated by the Chief Executive of the Company. Since it has come on record that the car was re-possessed by the Crescent Leasing Company through ICIL, therefore, it was necessary to see and to know as to under what authority/charter ICIL is working and how it can get re-possession of the cars through its own force and to what extent it can apply the force. After this development, Managing Director, of the Crescent Leasing Company was directed to cause presence of the Managing Director of ICIL and in response Mr. Babar Mufti, Managing Director of the said Company has appeared and submitted that his company is a Limited company and under the Memorandum and Articles of its Association, this is one of its jobs to re-possess cars of defaulters and to collect debts from the defaulters. He has pointed out Articles 39 and 40 of the Memorandum of Association of its company (same is kept on record) which are reproduced as under:-- 39 To prove credit risk management services including asset repossession, debt collection, debt recovery, debt purchase, factoring and asset/debtor tracing services.
40. To provide information verification services including motor registration verification services, income estimations services and address verification services. Keeping in view the nature of the dispute in the petition and contentions of the parties, it was realized that this issue can affect general public, therefore, Mr. Ahmed Pirzada, Addl. A.-G. Present in the Court, has also been put on notice. The Managing Director of ICIL states that they have taken possession of the car as per direction of the Leasing Company and since their Memorandum and Articles of Association provide such service, hence they carried out the job and took over the car from the applicant and thereafter, handed it over to the leasing company. Another officer of ICIL, Syed Sultan Haider, working as Head of Recovery Cell states that actually he, along with four persons of his team, intercepted the car of the applicant on 23-6-2005 and took the applicant to the office of the Leasing Company, where car was kept by the Company but the applicant did not hand over the keys of the -car to the company. This statement has strongly been refuted by the petitioner and his counsel as according to them the car was snatched from the applicant and was taken away by throwing the petitioner out of the car on road. In such a controversial situation and keeping in view different statement of the police official in its report under section 173, Cr.P.C., order of Magistrate, statements of Managing Director of Crescent Leasing Company and of Managing Director of ICIL, it has become crystal clear that the police report under section 173, Cr.P.C. Was based on incorrect assessment and has wrongly been accented by the learned Magistrate. In the circumstances and keeping in view that from the allegation of the F.I.R. An offence has apparently been made out, the order of learned Magistrate dated 4-5-2006 is set aside. The S.H.O. Of the concerned police station is directed to conduct fresh investigation himself, proceed with the case and submit challan after investigation against the persons who may be found involved including the officials of any company. The investigation report be sent to the Member Inspection Team of this Court. The Court, entrusted with the matter, is also directed to send its final order in the matter to the member Inspection Team. The request of petitioner for compensation cannot be granted at this stage, however, it has been observed that before taking any action for recovery/re-possession of the car from the petitioner no notice or intimation was given by the Crescent Leasing Company or by its agent ICIL nor any reasonable opportunity at any time was given to the petitioner to put up his case in respect to the alleged default in lease, therefore, the action by both the above companies is totally unjustified and they have wrongly exercised direct power to recover the lease article in terms of section 16(3)(a) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, therefore, the petitioner may seek its remedy as provided by proviso to subsection (3) of section 16 of the above Ordinance. To the extent of setting aside the order of the Magistrate, this petition is disposed of. The matter is not to be left here as the situation coming out in this petition is alarming one as any company or body cannot be authorized to take law in its own hands on its own justification without any notice etc. As, sometimes, it can create serious problem if any resistance is offered by the borrower/customer. The Managing Director of ICIL and its officer Syed Sultan Haider are also not clear as to what extend they are permitted to use force and if occupant of the vehicle is armed then what action they are required to take and who will be responsible in case of any casualty. Learned A.A.-G. Pointed out that such type of complaints are pouring day in and day out and unnecessary burden in the shape of complaints upon police and upon Courts has been increased. He apprehends that sometimes it can cause serious problem when there is a heart patient, or the car, under the lease, is going to hospital or for some emergency work or serious resistance is offered.
After hearing the learned counsel for the parties and the learned A.A.-G., on this point it will be pertinent to refer the matter to the Home Secretary of Sindh to realize the situation and see as to what extent recovery companies can be authorized to take task of recovery in hand and to use force and who will be responsible if any untoward incident is caused to either of the party and in such a situation what will be the role and excuse of the police. The Security and Exchange Commission of Pakistan (SECP) is also directed to check Memorandum and Article of Association of Companies so that they may have a check on misuse of their Memorandum and Article of Association as simple mentioning of any aim or object in their memorandum does not empower the concerned company to take refuge from any illegality under its memorandum. The office is directed to send copy of this order to the Home Secretary and to the SECP. The matter should be reported back to this Court within two months by the Home Secretary and by SECP with their action and suggestions.